Rainsong Holdings Pty Limited v Australian Capital Territory and Commissioner for Australian Capital Territory Revenue Collections

[1993] HCATrans 202

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IN THE HIGH COURT OF AUSTRALIA

Registry No C4 of 1993

B e t w e e n -

RAINSONG HOLDINGS PTY LIMITED

Plaintiffs

and

AUSTRALIAN CAPITAL TERRITORY
AND COMMISSIONER FOR AUSTRALIAN

CAPITAL TERRITORY REVENUE

COLLECTIONS

Defendants

Directions hearing

BRENNAN ACJ

(In Chambers)

Rainsong 1 15/7/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 JULY 1993, AT 9.31 AM

Copyright in the High Court of Australia

MR R.C. REFSHAUGE:  If the Court pleases, I appear for the

plaintiff.	(instructed by Macphillamy Cummins &
Gibson)

MR M.H. PEEDOM: If the Court pleases, I appear for the

defendants. (instructed by the ACT Government

Solicitor)

HIS HONOUR:  Yes, Mr Refshauge.

MR REFSHAUGE:  Thank you, Your Honour. Your Honour may

recall that these proceedings were commenced during

or at the end of the hearing in the matter of

Capital Duplicators v The Australian Capital

Territory because an amendment to the Act under

consideration, the Business Franchise ("X" Videos)

Act, had been made in, I think, March 1993, which

somewhat changed the initial payment of the

franchise fee and which therefore raised issues as

to the constitutionality which, I think it is fair

to say, all parties and the intervenors agreed

should be dealt with by the Court, if possible, at

the same time because they raised relevantly

identical issues.

Those proceedings were then commenced and a

defence and a demurrer were filed by the Territory

but it was not possible, in the time then remaining
during the hearing of Capital Duplicators, for all
the formalities to be complied with. But the
opportunity was taken to discuss the matter with

the parties there represented and a procedure was

agreed whereby, in effect, the same procedure would

be adopted in these proceedings as in the other

proceedings, namely, appropriate questions which

had been able to be drafted relevantly identically

to those questions referred as amended in Capital

Duplicators for the decision of the Full Court.

The submissions already made would be accepted with

the opportunity for the parties to make some short

supplementary written submissions, and that the

matter would then stand for judgment at the same

time as Capital Duplicators.

HIS HONOUR: In general, I might say, I have perused the

summons and the supporting material and I would be

inclined to make an order as per the summons in

most of the issues that are there raised. But, first of all, let us attend to the formalities:

you are reading the summons?

MR REFSHAUGE:  The summons and the affidavit of myself,

sworn 5 July 1993. Your Honour, there have been

some omissions drawn to my attention. The first is

that although we did attempt to file by post a

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section 78B notice, apparentiy it has not arrived

and a notice has been filed this morning.

HIS HONOUR:	I am sorry, would you say that again?
MR REFSHAUGE:	I attempted to file a section 78B notice by

post. Apparently - I was advised by the Registry -

that that had not been filed as of this morning and

I have filed a fresh 78B notice in this matter this

morning.

HIS HONOUR:  Yes. I do not think that raises any problems,

does it?

MR REFSHAUGE:  No, Your Honour, and Your Honour will see

that on the affidavit such a notice was forwarded

to each of the Attorneys.

HIS HONOUR:  Yes. Now, that is your affidavit sworn on

5 July, and you have a further affidavit, do you?

MR REFSHAUGE:  No, Your Honour.

HIS HONOUR:  No, there was one already filed earlier. I

think there is an affidavit by you filed on 4 May

as to the service of a section 78B notice.

MR REFSHAUGE: Well, in that case, the document that I

understood had not been filed has arrived then,

Your Honour.	I would rely on that affidavit also,
Your Honour.

HIS HONOUR:  This is in relation to the service on

Attorneys-General, I think.

MR REFSHAUGE:  Yes.

HIS HONOUR: Well now, we have the 78B notices attended to.

Responses?

MR REFSHAUGE:  We have responses from all the Attorneys save

for the Attorney for the Northern Territory, and

that omission is explained by a telephone

conversation I had with Mr Pauling, the

Solicitor-General for the Territory, this morning.

Your Honour may recall that in part 2, as it were,

of Capital Duplicators, the Northern Territory was represented by the Solicitor-General for the State of Victoria and the Territory had taken the view

that this was part of the same proceedings -

obviously not formally but in substance - and,
accordingly, they were relying upon the response of
the Victorian Solicitor-General as their response.

Mr Pauling indicated that he would confirm that in writing but since I have spoken to him there has

not been an opportunity to do that. If Your Honour

Rainsong 3 15/7/93

wishes, I can file a short affidavit to that

effect.

HIS HONOUR:  I must confess I am disinclined to make an

order which is capable of affecting the interests
of an intervenor who has a very real interest in

the proceedings without having that intervenor

acknowledge the fact that they have no further

interest. It places you in a position, which I do

not think you should be placed in, to have to place

that information before me. I would prefer to see

an acknowledgement from the Attorney-General for

the Northern Territory of the propositions that

they have informed you of orally.

MR REFSHAUGE:  Would Your Honour then be prepared to stand the matter down for a short period of time?

HIS HONOUR: Certainly. It could be done by fax, I would

have thought, fairly easily.

MR REFSHAUGE:  That has already been requested but literally

only about 15 minutes ago.

HIS HONOUR:  Yes, I see. Well now, let us get on to the

more substantive matters in the case. The
questions referred in Capital Duplicators are not

in precisely the same words as those which are

sought in the summons.

MR REFSHAUGE:  Your Honour, they were amended at the hearing

because the plaintiffs proposed an argument that in

so far as the videos, in respect of which the

franchise fees were to be paid, were either from·

local manufacture or imported and it was as a

result of that that question (1) was amended and

our understanding was that it was amended in the

terms of l(a) in the summons.

HIS HONOUR:  I see. Can you give me a reference to the page

of the transcript?

MR REFSHAUGE:  I am sorry, I cannot, I apologize, but

perhaps in the adjournment I can look at that and

give Your Honour - - -

HIS HONOUR:  All right. I need to be satisfied that the

terms in which the questions are to be reserved are

precisely the terms of the Capital Duplicators, as

amended.

MR REFSHAUGE:	Yes, I understand that, Your Honour.
HIS HONOUR:	Now, paragraph 2 of your summons seeks an order

that:

Rainsong 4 15/7/93

the oral and written submissions of all the

parties, including the intervenors ..... mutatis

mutandis, submissions made to the Court -

There does not seem to be any problem about that.

All parties seem to have acknowledged that in their

correspondence with you. ·

MR REFSHAUGE:  Yes, Your Honour.

HIS HONOUR: Paragraph 3:

The defendants file any further written

submissions within 14 days.

Am I right in thinking that one of the intervenors suggested that they might also wish to file some further submissions?

MR REFSHAUGE:	I did not understand so, Your Honour.
HIS HONOUR:	Yes. Your letter, however, at the top of the

second page says:

It was noted that the parties, the plaintiffs

and defendants may wish to make. short

additional written submissions relating to the

1993 Act.

MR REFSHAUGE:  Your Honour, the intention there was - and I

note that the punctuation makes it unclear; there

should have been a comma after "defendants" - that

"the parties" refer only to the "plaintiffs and
defendants". That, certainly, was the

understanding - I think Mr Peedom can confirm

that - between those who were present during the

hearing of Capital Duplicators. ·

HIS HONOUR:	Yes.
MR REFSHAUGE:	But if Your Honour wishes, we would have no

objection if paragraph 3 were expanded to include,

"The defendants and any intervenor", and we will
arrange for that advice to be sent by fax.	That

causes us no difficulty, but it is not the
understanding that we had although, I appreciate,

on the papers, it may not be transparently clear.

HIS HONOUR:  Yes. I will see what Mr Peedom has to say

about that in due course. Paragraph 4: there does

not seem to be any problem with that. Paragraph 5:

it seems to be that paragraph 5 raises a difficulty

in the sense that I do not think it is for a single

Justice to bind the hand of the Full Court but I

would have thought that if the order is made in

accordance with paragraphs 1 to 4, paragraph 5

would automatically follow.

Rainsong 5 15/7/93

MR REFSHAUGE: In those circumstances, I do not press

paragraph 5, Your Honour.

HIS HONOUR: Yes. Paragraph 6, I think, again, the same

observation might be made. Paragraphs	7 and 8 do
not seem to present any difficulties.	I will see
what Mr Peedom has to say now.

MR REFSHAUGE:	Thank you, Your Honour.
HIS HONOUR:	What is your attitude, Mr Peedom?
MR PEEDOM:	Your Honour, we consent to the orders being made

in the terms that have been sought. In relation to

paragraph 3, my understanding is the same as

Mr Refshauge's, however, we would be quite content

with any amendment that was made to incorporate the

possibility of additional submissions by the

intervenors, Your Honour.

HIS HONOUR:  Yes. In those circumstances, paragraph 3 could

be amended to read, "The defendants, and if so

advised, the intervenors" or just "and the

intervenors" I would have thought. Are you in a

position to say - - -

MR REFSHAUGE:  I am in the position to obviate the need for

an adjournment. Your Honour, might I hand to

Your Honour a letter from the Solicitor-General for

the Northern Territory indicating that he does not

wish to intervene further in the proceedings.

HIS HONOUR:  Yes. It refers to representation rather than

anything else but I think I can take the will for

the deed and regard it as sufficient for

these purposes.

MR REFSHAUGE:	Thank you, Your Honour.
HIS HONOUR:	You tender that copy letter, I presume?
MR REFSHAUGE: Yes, Your Honour.
HIS HONOUR:	It will be marked Exhibit A.
EXHIBIT:	Exhibit A .... Copy letter from
Solicitor-General for the Northern
Territory.
MR REFSHAUGE:	Your Honour, there is one matter that

Your Honour did raise with me and that is the

question of the amendment to the question reserved

in Capital Duplicators. I will need a short

adjournment for that purpose.

Rainsong 6 15/7/93

HIS HONOUR:  Yes. I would be grateful if you could just

tidy that one up and then we can make the orders,

adding the words "and intervenors" in paragraph 3.

MR REFSHAUGE:	Thank you, Your Honour.
HIS HONOUR:	Your could let me know when you are ready to

resume, Mr Refshauge.

AT 9.46 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.00 AM:

HIS HONOUR:	Yes, Mr Refshauge.
MR REFSHAUGE:	Your Honour, on 23 April the Chief Justice

gave leave to amend the questions reserved at
page 298 of the transcript, and I have extracted
that and I have a copy which I can hand up to

Your Honour.

HIS HONOUR: 

Thank you.

MR REFSHAUGE: 

Your Honour, at the same time, if I can hand up also an earlier page which was the resumption

after lunch on the previous day, the 22nd, which I

think was the Thursday. The purpose of this is
that there appears not, in the Capital Duplicators'

file, to be a copy of the document that was handed
up which was the amended question reserved and

there is, in Mr Jackson's comment, some references

which are the nearest I can do to assist
Your Honour with the terms. But can I say to
Your Honour that both Mr Peedom and I assure

Your Honour that the terms of order l(a) in the

summons are relevantly identical to the questions

reserved in Capital Duplicators save for the

additional reference to the new Act.

HIS HONOUR: 

My associate has found a document which reads

as follows, which may have been the one that was
handed up:

Are any and, if so which, of the provisions of

the Business Franchise ("X" Videos) Act 1990

of the Australian Capital Territory invalid as

imposing in any respect either a duty of

excise or a duty of customs -

and in my handwriting "or both" -

Rainsong 15/7/93

within the meaning of section 90 of the

Commonwealth Constitution?

MR REFSHAUGE:  I think page 229 of the transcript shows that

that addition was accepted. So, I would seek leave

to amend the summons to add the words "or both" in

paragraph l(a) of the summons.

HIS HONOUR:  Yes. Well, is this the form which it should be

in, this one that I just read out or are you

wishing to have it in the form which you have got

in the summons?

MR REFSHAUGE:  Having boldly given an assurance, I think it

read out with the handwritten amendment.	is in the form of the document Your Honour has just
Your Honour read - page 229 of the transcript, Mr Jackson does refer to that and that is where it
comes from.

HIS HONOUR:	It does seem to do that, does it not?
MR REFSHAUGE:	Yes.
HIS HONOUR:	Well then, mutatis mutandis, it should be, in

accordance with your paragraph l(a), altered to

include the 1993 Act - I will put that another way:

it should be in the form which I read out, altered

in accordance with paragraph l(a) to include the

reference to the 1993 Act.

MR REFSHAUGE:  Yes.

HIS HONOUR:  Very well. Do you agree to that, Mr Peedom?

MR PEEDOM: Yes, Your Honour.

MR REFSHAUGE:  Your Honour, I have just noticed one other

minor matter. In my copy of the summons the name

of the principal Act is slight incorrect.

HIS HONOUR: Yes, the "X" (Videos) should be in brackets.
MR REFSHAUGE:	In brackets, yes. The bracket should be

before the "X" and not after it.

HIS HONOUR:  Yes. The order will be as follows:

1.     There be reserved for the consideration of the Full Court the following questions:

(a) Are any, and if so which, of the

provisions of the Business Franchise
("X" Videos) Act, 1990, of the

Australian Capital Territory as

amended by Act No. 15 of 1993 invalid

as imposing, in any respect, either a

Rainsong 8 15/7/93

duty of excise or a duty of customs

. or both within the meaning of

section 90 of the Commonwealth

Constitution?

(b) Are any, and if so which, of the

provisions of that Act invalid under

the Australian Capital Territory
(Self-Government) Act 1988, of the

Commonwealth, as being a law with

respect to a "classification of materials for the purposes of censorship"?
(c)	If the answer to any part of questions (a) or (b) is "yes", are

any, and if so which, further

provisions of that Act incapable of

being severed from those provisions

and therefore invalid?

2.     The Court accept the oral and written

submissions of all the parties, including

the intervenors, made to the Court in the

matter of Capital Duplicators Pty Limited

& Anor v. Australian Capital Territory &

Anor, No. CS of 1990, as mutatis mutandis, submissions made to the Court in this

matter.

3.     The defendants and any intervenors who may

be so advised file any further written
submissions within 14 days.

4.     The plaintiff file any written submissions

in reply within 14 days thereafter.

5.     The costs of this application be costs in the question reserved.

I am making that order, Mr Refshauge, on your

undertaking to advise the intervenors of the making

of the order in the terms which I have pronounced,

forthwith, by fax.

MR REFSHAUGE: Yes, Your Honour, I give that undertaking.

Your Honour has not made order No 6.

HIS HONOUR:  No. No, it does not seem to me to be

appropriate for a single Justice to make an order

binding the Full Court as to when it delivers

judgment.

MR REFSHAUGE: Yes, I see that, I am sorry. Thank you,

Your Honour.

Rainsong 9 15/7/93

HIS HONOUR:  I mean, I would expect that the judgment will

be delivered at the same time but I do not propose

to make an order to that effect.

MR REFSHAUGE:  No. I see that, Your Honour, I am sorry.

HIS HONOUR:  And the fax will include the terms of the

amended questions, that is, amended from the form

of the summons to what I have read in the course

of this hearing.

MR REFSHAUGE:  Yes, Your Honour.

AT 10.08 AM THE MATTER WAS ADJOURNED SINE DIE

Rainsong 10 15/7/93